EPA’s war on property rights

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“War,” as political metaphor, is most often a tasteless accessory that demeans the term to those who have actually experienced it (“war on poverty,” “war on drugs”). But to the extent it connotes a full-fledged attempt to subjugate a group of people by depriving them of their rights, the term may appropriately describe the Environmental Protection Agency’s (EPA) posture toward landowners.

The case of Sackett v. EPA, decided last month by the Supreme Court, shed light on just how far the agency will go to achieve its aims. Its tactics should disturb every citizen who is striving for the American dream. And major reforms are needed to ensure that dream remains viable.

Mr. and Mrs. Sackett bought a small plot of land near a lake in Idaho on which they planned to build a home. In the preconstruction phase, they filled part of the lot with rocks and dirt. The EPA, after catching wind of the scheme, issued a compliance order that stated their lot contained a “wetland,” and thus was subject to the Clean Water Act (CWA). The order demanded they undo the fill work and threatened fines of as much as $75,000 per day. The CWA’s tendentious language allowed the EPA to issue such orders with little fear they would ever have to prove their conclusions before a neutral magistrate.

The Supreme Court ruled for the Sacketts, stating they were entitled to judicial review of the EPA’s assertion of CWA jurisdiction. But the case is still disturbing for what it, and similar cases, reveal about how the EPA confronts potential violations of environmental statutes.

As pointed out in the U.S. Chamber of Commerce’s amicus brief, the EPA takes a scorched-earth approach in dealings with landowners.

The brief notes an internal memorandum the EPA produced in a previous case that directs its field agents to issue compliance orders that are “ugly, onerous and tough,” to make it “very unpleasant” for property owners so they choose not to risk a game of “Russian Roulette.”

The EPA’s treatment of the Sacketts and countless others is bureaucratic bullying in the rankest form: using the power of the state to coerce citizens into unilateral compliance with the knowledge their directives would likely never be challenged. As Justice Alito remarked to the government’s lawyer at oral argument, “If you related the facts of this case as they come to us to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” And indeed it shouldn’t.

But although the Sacketts scored a victory for the constitutional notion of due process, it will likely not curb rampant agency abuse. The federal bureaucrats making these decisions are not answerable to the general public through the political process and thus have little incentive to consider concerns of compliance cost and effort. Further, they need not compromise because they recognize most landowners cannot afford prolonged and expensive litigation with the federal government. While EPA agents no doubt believe they are acting in the best interests of the country, their unaccountability leaves them vulnerable to the natural inclination to expand power and dominion.

Two steps are needed in order to return balance to the relationship between government and landowners. First, Congress should revisit the language of its environmental statutes to give guidance to, and remove discretion from, the EPA. These statutes’ notoriously ambiguous language invites coercion and abuse. Second, the courts must take a more active role in defending the rights of the individual. It is telling that before the Supreme Court decided for the Sacketts, both the district court and circuit court had ruled for the EPA. And, in fact, the government had argued the Supreme Court should not even hear the case because no circuit split — disagreement between the regional circuit courts, a primary reason for a Supreme Court hearing — existed on the issue.

John Adams had never met an EPA regulator when he proclaimed, “Property must be secured or liberty cannot exist.” But if property is only secured at the mercy of EPA bureaucrats, then we have lost one of the cornerstones of our American experiment.

Paul H. Jossey is a lawyer living in Alexandria, Virginia. His interests include environmental policy and First Amendment issues.